The Mail said “new rules” directed “future judgments in the family courts must be made public except in cases where there is a clear reason to dictate they should not be”. Well, not quite. What was actually behind the headlines was a guidance document [pdf] issued by Sir James Munby, president of the family division and a well-known champion of transparency.

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The guidance spelt out for judges what kinds of judgments in family cases they should publish and when they should do so. It anticipated routine anonymisation and was intended to prompt a wide change in practice and a significant increase in the publication of judgments. Munby’s hope was this would improve public understanding and confidence in the court system.

There is a long, unhappy history of why these changes were brought in via guidance not law. Making family cases more transparent is a huge legislative and political headache. Parliament last tried (and failed) in 2010, so judges were left to grapple with the problem themselves without law reform or resources behind them.

Two years on, the guidance hasn’t seen revolutionary change and has caused a number of problems in principle and practice.

Judgments take time to prepare: they must be typed or transcribed, then checked, anonymised and rechecked prior to publication. When courts are publishing judgments containing intensely private material, anonymisation is critical. Judges have no additional time or staff support for these tasks; they must be slotted in between hearings.

The number of cases coming through the family courts continues to rise, so the pressure to prioritise becomes more acute. Courts are working with skeleton staff and anonymisation is either left to the judge or passed on to lawyers, who are expected to carry it out without additional pay.

The process is ad hoc and with everyone under pressure, errors are inevitable. Recently, an unanonymised judgment relating to allegations of sexual abuse of a named child was briefly published. Luckily, the mistake was remedied swiftly, but the potential for harm and distress is clear.

In some countries where judgments are anonymised before publication, there is a dedicated unit, guidelines and checks to ensure mistakes of this sort don’t happen. In England and Wales , a research project is under way to draft guidelines for anonymising judgments, but this presupposes that the problem is judicial carelessness rather than a lack of resources and processes, so will not in itself resolve the problem.

A more common problem, given stretched resources, is significant delays between the delivery and publication of judgments, either because a judge has a backlog, or because a transcript has got lost in the system. In the “secret family courts” they are not waving but drowning.

So what about the Mail article? Matters were never so clear-cut as the headline suggested. The transparency guidance said a judgment should be published whenever the judge decided it was “in the public interest” to do so. Second, it said that certain categories of judgments – decisions to permanently remove children from their parents, for example – should be published, unless there are compelling reasons against doing so.

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In each case of this sort the court should be actively considering whether there is a good reason not to publish. If there isn’t, that judgment should appear on the website of the British and Irish Legal Information Institute, the organisation responsible for publishing judgments online. Even allowing for exceptions in the guidance and some “compelling reasons” cases, it’s clear that publication of judgments is just not happening consistently.

Some judges haven’t published a thing in the two years since the guidance was issued. Have they really found compelling reasons not to publish a judgment in every case they have dealt with?

The problem is there are wildly different views about this guidance among judges, lawyers, professionals and parents. While some parents are content for judgments to be published, many are anxious about details going online, anonymous or not.

If a judge is not supportive of the guidance or the lawyers don’t raise the issue, the principle of publication is simply forgotten. Even older children are not routinely asked about these matters by their lawyers, even though they are entitled to a view on the publication of the story of their life.

By contrast, where a council has been criticised for some failing or other, you can pretty much guarantee that all parties will be clamouring for publication. The judge – having been sufficiently annoyed with the council to have expressed their criticisms in writing – will usually agree.

Such judgments should be published, but it can produce skewed results: if a judgment critical of the state is more likely to be published than a non-critical one, the impression of what is going on in our courts is distorted. The public may come to think that every case handled in the family courts is a case of social work failure and incompetence.

This is why the neglected second strand of the guidance is vital: it recognises the inherent public interest in open justice through the routine publication of judgments, as opposed to the specific public interest in a report of an individual case. Surely it is just as much in the public interest to read about a run-of-the-mill case where the state has discharged its functions responsibly as a newsworthy one where things have gone wrong?

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This ad hoc, partial and risky version of transparency was not what the guidance intended to promote. The past two years have shown that issuing guidance without proper resources, operational procedures and clear lines of responsibility is not an effective way to improve public understanding of the court process.

Instead, we should have clear rules of court, or primary legislation, that make plain judgments will be published in anonymised form unless there is a good reason not to. The onus is then on the person who wants to restrict publication.

There will sometimes be reasons not to publish, and in those cases the issue can be flagged and the court can decide. Let there be proper processes to get anonymisation right; transparency need not jeopardise privacy if done properly. This requires resources, but surely protecting public confidence in the justice system is worth it?